Arbitration – 2014
Accreditation: Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through – Arbitration 2014, (published in January 2014; contributing editors: Gerhard Wegen and Stephan Wilske of Gleiss Lutz). For further information please visit http://www.GettingTheDealThrough.com
2014 may mark the implementation of the long-awaited Resolution of the Supreme People’s Court guiding certain provisions of the Law on Commercial Arbitration of Vietnam. The prospective Resolution may address many controversial issues, such as jurisdiction of the Vietnamese courts over foreign arbitration activities within the territory of Vietnam, the clarification on the validity and operability of arbitration
agreements or the fundamental principles of Vietnamese laws to name a few.
Recently, the issue of recognition and enforcement of foreign arbitral awards under the 1958 New York Convention has received unprecedented attention from legal practitioners as the Vietnamese
courts dismissed a large number of applications for recognition and enforcement of foreign arbitral awards resulted from ex-parte proceedings mainly due to the improper service of arbitration notices on the Vietnamese respondents and the incapacity of the signatories to the arbitration agreement. ‘Fundamental principles of Vietnamese laws’ is also occasionally relied on by the courts to refuse recognition
To date, Vietnam is reported to be the respondent in four international investment arbitrations. One was the case TVB v Vietnam, initiated in 2004, and this was settled on confidential terms in 2007. Another two cases, Mackenzie/South Fork v Vietnam and Dialasie v Vietnam, initiated in 2010 and 2011 respectively, are still pending. Information on the fourth case, known as the Recofi case, has been extremely limited so far. The content of each case may be briefly outlined as follows.
In the Mackenzie/South Fork case, the claimant, Michael L Mackenzie initiated arbitration against Vietnam under the US-Vietnam BTA on the ground that the Vietnamese authorities failed to protect his investments in a resort development project in Vietnam. In the Dialasie case, the company Dialasie SAS sued Vietnam under the France-Vietnam BIT to claim compensation for its health services investment. Meanwhile, the famous Trinh Vinh Binh case is a dispute under the Netherlands-Vietnam BIT concerning a claim arising out of the criminal conviction of Trinh Vinh Binh as well as the seizure of his assets, raising the interesting issue of moral damages in international investment arbitration.